The Ombudsman's final decision
Summary: We will not investigate this complaint about damage to Mr X’s vehicle which he says results from lack of maintenance of the roads in the area. This is because it is reasonable to expect Mr X to use his right to go to court about the matter.
The complaint
Mr X complains his car suffered damage due to the poor state of the roads in the Council’s area. He made a claim to the Council for compensation but says the Council has refused the claim. Mr X says he had to sell his car as he cannot afford the cost of repairs.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I considered information provided by Mr X.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council, as a local highway authority, has a statutory duty to maintain the roads in its area. The Council is expected to routinely monitor the state of highways and carry out repairs where necessary. But the level of maintenance, frequency of inspection and threshold for repair is not set out in law and is open to interpretation.
Mr X’s complaint concerns the damage to his vehicle and if he wishes to claim compensation for this it would be reasonable for him to take the matter to court. Only the courts can decide if the Council has met its statutory duty and whether it is liable for the damage to Mr X’s car. The courts must also consider the actions of the motorist and the ‘special defence’ afforded to highway authorities under Section 58 of the Highways Act 1980. It would not be appropriate for us to deny the Council the right to use this defence.
Final decision
We will not investigate Mr X’s complaint because it is reasonable for him to take this matter to court. The court is in a better position to decide whether the Council has met its legal duty to maintain the highway and whether it is liable for the damage to Mr X’s car.
Investigator's decision on behalf of the Ombudsman